A three-judge panel of the Ninth Circuit Court of Appeals just granted a temporary injunction pending appeal in the case of Pickup v. Brown,* a challenge to the constitutionality of a new California statute barring licensed health practitioners from providing the treatments defined as “sexual orientation change efforts” to minors. This is a quite interesting case, for lots of reasons – First Amendment speech rights of health care providers, the varying roles of parents, states, and minors over how children are raised, statutory regulation of medical practices, sexual orientation and the Constitution, and others. But one of the others that may get overlooked is that the case may be a bit of an imperfect test drive for arguments about “cognitive liberty.”

As I was finishing this post, I came across another post on these cases from NYU law professor Arthur Leonard, which goes into the legal issues in more detail than I do. I recommend it. What follows is supposed to be just enough background to let you understand the case, but it did get a bit long. Some of you may want to skip down to the “Cognitive Liberty” heading.

The Statute and the Cases

The Ninth Circuit has set up a page with links to downloadable copies of the relevant documents here. (This is a nice touch by the Court – part of a section of the Court’s home page that has links to documents about five cases of particular media and public interest.) The Appellant’s emergency motion for a temporary injunction pending appeal is probably the best document to start with because it contains two, conflicting, lower court decisions about this statute, plus the language of the statute itself.

Here’s the background. Earlier this fall the California Legislation, and Governor Jerry Brown signed, SB 1172, a statute that added three new sections, 865, 865.1, and 865.2, to the California Business and Professions Code.

The latter two sections are the operative parts:

865.1. Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.

865.2. Any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.

The first section provides definitions, of mental health provider (a broad swath of licensed health care providers or trainees) and of “sexual orientation change efforts” (”SOCE”). It defines the latter as

“any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”

The section goes on to exclude from that definition “psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.” (emphasis added).

Apparently the bill had been pushed heavily by Equality California, a non-profit advocacy group that became an intervenor-defendant in the Pickup case. The draft bill allowed past patients to sue providers for harm caused by prior SOCE treatment, but that was eliminated in the legislature. Initially, the California Psychological Association (CPA), California Association for Licensed Professional Clinic Counselors, California Psychiatric Association, and California Association of Marriage and Family Therapists (CAMFT) opposed the bill, although eventually the CPA and the CAMFT supported it and the others withdrew their opposition to it (but apparently did not support it). Governor Brown signed the bill on September 29, 2012, making it apparently the first legislation of its kind in the United States. The Act is to go into effect on January 1, 2013.

At least two suits were filed to block the Act. The Pickup case was filed on October 4 in the Eastern District of California. Its plaintiffs were four mental health professionals who provided SOCE treatment, two organizations whose members provided SOCE treatment, and two sets of parents (Jack and Jane Does 1 and 2) on behalf of two minor patients (John Doe 1 and 2) of two of the plaintiffs. This case was assigned to Judge Kimberley Mueller, who held a hearing on the plaintiffs request for a preliminary injunction against the statute on November 30 and issued an order denying that request on December 4.

At the same time, and in the same district court, two other affected licensed mental health professionals plus a person who “was involved in sexual orientation efforts commonly called ‘SOCE’” as an adult in 2011 and 201” and “had been planning on becoming a therapist specifically to work with individuals having same-sex attractions and to help men like himself.” This suit, Welch v. Brown, was also filed in the Eastern District of California and (for some reason) was assigned to a different judge, William B. Shubb. This case was filed on October 1. I cannot tell when this preliminary injunction motion hearing was held, but Judge Shubb granted the motion on December 3.

Both judges sit in the same courthouse in Sacramento. I do not know why the two suits weren’t consolidated and assigned to one judge – it is not common to see the same legal issue decided by two judges in the same district court in different ways. The plaintiffs in the second case did file a notice of related case, arguing that the two should not be considered “related” because they had different plaintiffs, some different defendants, and some different legal theories, including the state law theories in Pickup. (Seems unconvincing to me, but I’m a long way removed from district court practice.)

Judge Shubb’s opinion for his plaintiffs focused on their First Amendment rights. He found that the statute attempted to regulate speech, that it was not viewpoint neutral, and that it would have to survive strict scrutiny to be upheld. Without having seen any compelling state interests that the statute was narrowly drawn to serve, he concluded the plaintiffs were likely to succeed and granted the preliminary injunction. He did not reach his plaintiffs’ other claims, including those based on the right to privacy, on the Free Exercise and Establishment clauses, or on the vagueness and overbreadth under the First Amendment Neither did he allow these professional plaintiffs to represent the interests of patients and their parents, or, for that matter, any professionals other than themselves. His injunction applies to only these three plaintiffs.

Judge Mueller, on the other hand, held that the ban was a regulation of conduct – providing a specific “treatment” and not of “speech.” “[W]hat SB 1172 proscribes is actions designed to effect a difference, not recommendations or mere discussions of SOCE.” She further held that the conduct involved was not the kind of expressive conduct that is sometimes treated as speech for purposes of the First Amendment, like wearing a black armband or burning a flag. She thus judged the statute under the “reasonable relationship” test and held the legislature’s findings about the lack of safety and efficacy of SOCE were sufficient to uphold it – or, at least, to lead to a conclusion at the preliminary injunction stage, that the plaintiffs had not shown that they are likely to succeed on the merits on that claim.

Judge Mueller, unlike Judge Shubb, then had to analyze her plaintiffs’ claims about parental rights and, in a lengthy discussion, held that the statute did not violate those constitutional rights. Her plaintiffs had alleged several California constitutional violations in their complaint but had not made them part of the motion for a preliminary injunction.

Her opinion also refers, several times, to a possible role for people who are not licensed mental health providers covered by the statute. Nothing in the statute, she points out, prevents parents from seeking “SOCE or its equivalent through religious institutions or other unlicensed providers.” (I must say it seems a bit odd to me to say that banning licensed professionals from doing something is o.k. because unlicensed laypeople can still provide it – not crazy, but a bit odd.)

As noted (far) above, the plaintiffs appealed in Pickup (I don’t know whether the defendants have appealed in Welch. The three-judge panel, made up of Judges Goodwin, Leavey, and M. Smith, granted the Pickup plaintiffs’ request for a temporary injunction pending that appeal; I’m guessing the case will be argued in the spring of 2013.

This Case and Cognitive Liberty

SO . . . this is an interesting case, made more interesting by some federal court precedents on medical practice and the First Amendment. In one, Conant v. Walters, the Ninth Circuit enjoined the federal government from revoking a physician’s Drug Enforcement Administration license on the ground that he had recommended a patient use marijuana for medical purposes. In another, Wollschlaeger v. Farmer, a federal district court enjoined a Florida statute that forbade physicians to ask patients about gun ownership or to record any information about gun ownership in patients’ charts.

I’m not a First Amendment specialist and I don’t want to be one. I thought Judge Mueller’s position on the difference between a treatment and speech made sense, even if it is a “talk treatment”, but I could be wrong – particularly as the courts keep expanding the freedom of commercial speakers. I’m also not an expert on the constitutional law about parents and children, but I know enough about it to have very little confidence in anyone’s prediction of how the issue would get resolved here.

So I don’t know what the Ninth Circuit (or the Supreme Court) is likely to do with this case. I suspect (no surprise) that the standard of review will be crucial. The legislature’s findings that SOCE (all SOCE?) is neither safe nor effective should stand up to rational relationship review, but not, I suspect, much more serious inquiry.

But what most interests me about this case is its possible connection to “cognitive liberty.” The term “cognitive liberty” may have been coined over a decade ago by Wrye Sententia and Richard Glen Boire, the founders of the Center for Cognitive Liberty and Ethics. Today it is coming into wider use as people interested in neuroethics wonder what protections exist, or should exist, for people who want to keep their brains (cognitive portions and others) free from undesired interventions – or open to desired interventions. Nita Farahany, in particular, has been writing about some aspects of cognitive liberty and the Bill of Rights, such as the application of the Privilege Against Self-Incrimination to neuroimaging technologies. (See her excellent Stanford Law Review article, Incriminating Thoughts.) The accelerating pace of human neuroscience, and concomitant human neurotechnologies, is making these kinds of issues seem more and more relevant.

I have written a couple of articles about one potential issue around cognitive liberty – the use of neuroscience to “treat” people for things that aren’t diseases: H. T. Greely, Direct Brain Interventions to “Treat” Disfavored Human Behaviors: Ethical and Social Issues, Clinical Pharmacology and Therapeutics 91(2):1-3 (Feb. 2012), here but not free, alas, and Henry T. Greely, Neuroscience and Criminal Justice: Not Responsibility but Treatment, U. Kan. L. Rev. 56:1103-1138 (2008), available here as PDF. These articles mainly talk about hypothetical situations, involving speculative coercive neuroscience-based “treatments” for, say, criminal behaviors (though “chemical castration,” which they did discuss, is not hypothetical.) They also briefly raised questions, though, about restricting the power of people to choose such internventions, about the limited ability of children to consent, and about possible “treatments” for sexual orientation.

Unlike most of the situations I discussed in those articles, the Pickup case is not about a frankly coercive decision, by a court, a legislature, or anyone else, to impose an intervention, but about a decision to prohibit licensed providers from providing an intervention to a consenting person. (Of course, the degree of voluntariness to a consent when even a, say, 17 year old has said, consistent with his parents’ wishes, that he “seeks” SOCE, is certainly questionable.)

This case is also not about fancy neuroimaging, transcranial magnetic resonance, deep brain stimulation, or psychosurgery. The case, as framed by the plaintiffs, is about “talk therapy” (although the statute does ban more tangible interventions as well).

At its core, though, the case is about a medical or quasi-medical intervention that people (and their parents) want to use to change how their brains work – and not in a way that can be stigmatized as a “drug of abuse.”

There is no FDA review for “talk therapy” or other treatments not involving new drugs, biologics, or devices. A FDA finding that a treatment is “safe and effective” might give a state legislature less leeway.

Cases involving minors – even older teenaged minors – present special issues. Having an adult seek a prohibited intervention (note that the California statute doesn’t apply to adults) could make a difference.

And any issues in the U.S. involving sex, reproduction, or sexual orientation get special treatment. Challenges to a law prohibiting, say, a treatment that leads to cognitive enhancement could well be treated differently.

But it could also be the case that future cases about neuroscience based interventions in people’s brains – forced or forbidden – could be affected, for better or for worse, by the result in Pickup v. Brown.

Hank Greely

* Seriously, when you’ve got four named plaintiffs, two institutional plaintiffs, two each Jack, John, and Jane Doe defendants, and a case involving sex, why order your plaintiffs so that the caption is “Pickup v. Brown”? Or should I be thinking “pickup trucks”?